Citation Nr: 1308788
Decision Date: 03/15/13 Archive Date: 03/25/13
DOCKET NO. 10-23 316 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana
THE ISSUES
1. Entitlement to an increased rating for service-connected patellofemoral syndrome, left knee, currently evaluated as 10 percent disabling.
2. Entitlement to an increased rating for service-connected patellofemoral syndrome, right knee, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The Veteran had active service from May 1986 to May 1989, and from February 1991 to March 1991.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.
In July 2012, the Veteran appeared before the undersigned Veterans Law Judge in a videoconference hearing at the RO. A copy of the hearing transcript is associated with the file.
FINDINGS OF FACT
1. Despite her complaints of knee pain, stiffness, swelling, giving way, and locking, the Veteran's service-connected patellofemoral syndrome, left knee, is not shown to result in ankylosis, moderate recurrent subluxation or lateral instability, a malunion of the tibia and fibula, knee flexion limited to 45 degrees, or extension limited to 10 degrees.
2. Despite her complaints of knee pain, stiffness, swelling, giving way, and locking, the Veteran's service-connected patellofemoral syndrome, right knee, is not shown to result in ankylosis, moderate recurrent subluxation or lateral instability, a malunion of the tibia and fibula, knee flexion limited to 45 degrees, or extension limited to 10 degrees.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 10 percent for service-connected patellofemoral syndrome, left knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5256, 5257, 5258, 5260, 5261, 5262 (2012).
2. The criteria for a rating in excess of 10 percent for service-connected patellofemoral syndrome, right knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5256, 5257, 5258, 5260, 5261, 5262 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased Ratings
The Veteran asserts that increased ratings are warranted for her service-connected bilateral knee disabilities. She argues that she has symptoms that include an inability to climb stairs, or lift groceries, laundry, or more than ten pounds. See Veteran's notice of disagreement, received in August 2009; Veteran's appeal (VA Form 9), received in June 2010. During her hearing, held in July 2012, she testified that she had symptoms that include pain, swelling, weakness, and instability, and that her legs give out when she goes up stairs or washes dishes.
.
With regard to the histories of the Veteran's knee disabilities, the Veteran's service treatment reports from her first period of active duty show that she was treated for complaints of knee pain, with an assessment of PFS (patellofemoral syndrome). There were no relevant findings or diagnoses in her April 1989 separation examination report. No service treatment reports are of record for her second period of active duty, which spanned a period of about eight days.
As for the post-service medical evidence, VA X-ray reports, dated in 1991, 1992, and 1993 were negative. An April 1994 VA examination report contained a diagnosis of normal knee exam with pain with patellofemoral compression, weak quadriceps, and history patellofemoral pain syndrome.
In April 1991, the RO granted service connection for chronic bilateral patellofemoral syndrome, evaluated as 10 percent disabling. It evaluated the Veteran's bilateral knee disabilities under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257. As there was no appeal nor submission of material evidence within one year of that decision, the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2011); 38 C.F.R. § 3.156(b). In several subsequently dated final and unappealed decisions, the RO denied claims for increased ratings, most recently in May 1994.
In April 2009, the Veteran filed her claims for increased ratings. In July 2009, the RO denied the claims. The Veteran has appealed. In the RO's April 2009 decision, it indicated that it evaluated the Veteran's bilateral knee disabilities under DCs 5260-5019. See 38 C.F.R. § 4.27 (2012) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; disabilities requiring rating by analogy will be coded first the numbers of the most closely related body part and "99"). This hyphenated diagnostic code may be read to indicate that an unlisted musculoskeletal disorder is the service-connected disorder, and it is rated as if the residual condition is a limitation of knee flexion under DC 5260.
Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. Part 4 (2012). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012).
Under 38 C.F.R. § 4.71a, DC's 5260 and 5261, which address limitation of motion of the knee, a 10 percent rating will be assigned for flexion limited to 45 degrees or extension limited to 10 degrees. A 20 percent rating will be assigned for flexion limited to 30 degrees or extension limited to 15 degrees.
The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71. Normal extension and flexion of the knee is from 0 to 140 degrees.
The Board finds that a rating in excess of 10 percent under DC 5260 or DC 5261 is not warranted for either knee. The recorded ranges of motion for the left knee, and the right knee, do not show that the Veteran has ever been found to have flexion limited to 30 degrees or extension limited to 15 degrees. In this regard, the only recorded ranges of motion are as follows: extension to 0 degrees, and flexion to 140 degrees (bilaterally) (June 2009 QTC examination report); and extension to 0 degrees, and flexion to 95 degrees (bilaterally) (October 2011 VA examination report). The Board further notes that there is no evidence of arthritis.
The Board has considered the possibility of a higher rating under another diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).
Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is warranted for ankylosis of the knee with favorable angle in full extension or slight flexion between 0 degrees and 10 degrees.
Under 38 C.F.R. § 4.71a, DC 5257, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability.
Under 38 C.F.R. § 4.71a, DC 5258, [d]islocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, is rated as 20 percent disabling.
Under 38 C.F.R. § 4.71a, DC 5262, a malunion of the tibia and fibula of either lower extremity warrants a 20 percent evaluation if there is a marked knee or ankle disability.
The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012).
The evidence does not show that the Veteran left knee, or right knee, is productive of ankylosis, moderate recurrent subluxation or lateral instability, a dislocated semilunar cartilage, or a malunion of the tibia and fibula. The June 2009 QTC examination report shows that the Veteran denied a history of dislocation, and recurrent subluxation. On examination, there was no ankylosis, and all ligaments were normal. There was no instability. The October 2011 VA examination report shows that there was no anterior, posterior, and medial-lateral instability, and no patellar subluxation or dislocation. There is no evidence of a dislocated semilunar cartilage, or a malunion of the tibia and fibula. Accordingly, the Board finds that the criteria for a rating in excess of 10 percent under DC's 5256, 5257, 5258, and 5262 are not shown to have been met, and the claims must be denied.
The Board has considered whether a separate rating is warranted for instability of either knee. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). However, neither instability nor arthritis has been objectively established. See e.g., June 2009 QTC examination report, October 2011 VA examination report. As the medical evidence shows that the Veteran does not have any instability or arthritis, the Board has determined that the evidence is insufficient to show that a separate rating is warranted for instability of either knee. The evidence is insufficient to show recurrent subluxation or lateral instability of either knee under DC 5257.
In VAOPGCPREC 9-04, General Counsel determined that separate disability ratings could be assigned under Diagnostic Codes 5260 and 5261 for disability of the same joint. Here, the ranges of motion of the left and right knee does not meet the criteria for even a 0 percent rating under DCs 5260 and 5261, i.e., flexion limited to 60 degrees or extension limited to 5 degrees. Therefore, separate ratings for limitation of knee motion are not warranted.
In conjunction with application of DC's 5260 and 5261, an increased evaluation may be assigned on the basis of functional loss due to a veteran's subjective complaints of pain under 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court specifically discounted the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially "absurd results." Id. at 43 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). It was stated that 38 C.F.R.
§ 4.40 provides that joint pain alone, and even pain throughout the entire range of motion, but without evidence of decreased functional ability, does not warrant the minimum compensable rating.
The June 2009 QTC examination report shows that the Veteran complained of pain, weakness, stiffness, swelling, giving way, fatigability, and lack of endurance, and that she denied having heat, redness, instability, or locking. She reported having flare-ups of moderate severity during walking, "throughout the weeks," lasting days, or until she took Tylenol or aspirin, that were caused by weakness, with a moderate impairment on daily activities. The report shows the following: she was noted not to use any ambulatory aids. There was no history of hospitalization. Leg lengths were equal. There was pain on motion, but no fatigue, weakness, lack of endurance, or incoordination. There was no abnormal movement, and no guarding of movement. There was no additional loss of motion after five repetitions. Gait was normal. There were no functional limitations on standing and walking, but pain affected her ability to walk and stand for prolonged periods, and she had permanent restrictions of no lifting more than ten pounds. X-rays showed bipartite patella of moderate severity. The diagnosis notes chronic bilateral patellofemoral syndrome with bipartite patella with crepitus.
The October 2011 VA joint examination report shows the following: the Veteran complained of knee pain with flare-ups on a daily basis that forced her to rest. There was no additional limitation in range of motion following repetitive use testing. There was no additional functional loss, or functional impairment, after repetitive use. There was pain on movement. Strength on flexion and extension was 5/5, bilaterally. There is no history of a meniscus (semilunar cartilage) condition, and no history of meniscectomy or arthroscopy. There is no degenerative or traumatic arthritis. X-rays show normal bony alignment, maintained joint spaces, no soft tissue swelling or joint effusion, and unremarkable knees, bilaterally. The Veteran's knee conditions do not impact her ability to work. A VA spine examination report notes that strength on knee flexion and extension was 5/5, bilaterally, and that there was no muscle atrophy.
VA progress notes note a normal gait (July 2008 and June and August of 2009, March and June of 2010), and an intact neurological system (March and June of 2010).
In summary, like the veteran in Mitchell, the Veteran's knees are shown to be painful on motion but without any quantifiable loss due to actual pain. The evidence shows that her lower extremity strength is 5/5, bilaterally, and that there is no atrophy. There is no additional loss of motion or function upon repetitive use. Indeed, the Veteran has been shown to have a range of motion in her knees which is greater than even that required for even a 0 percent rating under DCs 5260 and 5261. Therefore, even taking into account the complaints of pain, the medical evidence is insufficient to show that the Veteran has such symptoms as atrophy, loss of strength, or incoordination, such that when the ranges of motion in either knee are considered together with the evidence of functional loss due to knee pathology, the evidence does not support a conclusion that the loss of motion in either knee more nearly approximates the criteria for a rating in excess of 10 percent, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. In short, the Veteran is already being adequately compensated for pain and any perceived loss of function.
Additionally, for each knee, to assign two, separate compensable ratings based on painful motion under two separate diagnostic codes (i.e., under Diagnostic Codes 5260 and 5261) would be in violation of the rule of pyramiding. See 38 C.F.R. § 4.14; VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2005).
Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied.
In deciding the Veteran's increased rating claims, the Board has considered the determination in Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased rating for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's ratings should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of either of the disabilities on appeal such that an increased rating is warranted for either knee.
The Board has considered the Veteran's statements that she should be entitled to higher disability ratings for her knees. She reports decreased function due to pain, weakness, and swelling. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d at 1331. Personal interest may affect the credibility of the evidence, but the Board may not disregard testimony simply because a claimant stands to gain monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).
In this case, the Veteran is competent to report her current knee symptoms as these observations come to her through her senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that her symptoms are of such severity as to warrant higher ratings. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disabilities are evaluated, more probative than the Veteran's assessment of the severity of her disabilities. Those examinations also took into account the Veteran's competent (subjective) statements with regard to the severity of her knee disabilities.
Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2012); Thun, 22 Vet. App. at 116.
The schedular evaluation in this case is not inadequate. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected bilateral knee disability are congruent with the disability picture represented by the disability rating assigned herein. The criteria for the 10 percent ratings assigned herein more than reasonably describe the Veteran's disability level and symptomatology. The Veteran is shown to have some decreased motion of the knees due to pain. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted.
Finally, although the Veteran has submitted evidence of medical disability, and made a claim for the highest rating possible, she has not submitted evidence of unemployability, or claimed to be unemployable. She reports full-time employment. Her earlier periods of post-service employment have not been attributed to her knee disorders. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).
II. The Veterans Claims Assistance Act of 2000
The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligations in this case were accomplished by way of a letter from the RO to the Veteran dated in June 2009. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The RO has provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records. In September 2010, the RO issued a memorandum in which it detailed the attempts that had been made to obtain the Veteran's records from the Social Security Administration (SSA). The RO concluded that all procedures to obtain these records had been correctly followed and that "[a]ll efforts to obtain the needed SSA ODO disability records have been exhausted, further attempts are futile." See 38 C.F.R. § 3.159(d).
The Veteran has been afforded two examinations. Concerning these examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the June 2009 and October 2011 examination reports reflect that the examiners reviewed the Veteran's medical history, recorded her current complaints, conducted an appropriate examination, and rendered appropriate findings, and diagnoses, that are consistent with the remainder of the evidence of record.
Recognition is given to the fact that the Veteran's last VA examination of her knees is now over 18 months old. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. There is no probative, objective evidence indicating that there has been a material change in the severity of the Veteran's knee disorder since the October 2011 VA examination. The Veteran does not contend otherwise.
As noted above, the Veteran was provided with a vidoeconference hearing before the undersigned Veterans Law Judge in July 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) require that the hearing officer who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked. The Board finds that both duties were met during the hearing. It was clear during the hearing that the Veteran had a full understanding of the issues on appeal. Specific testimony was elicited regarding the nature and severity of the Veteran's knee disabilities.
The Board concludes, therefore, that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).
ORDER
A rating in excess of 10 percent for service-connected patellofemoral pain syndrome, left knee, is denied.
A rating in excess of 10 percent for service-connected patellofemoral pain syndrome, right knee, is denied.
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MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs